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TMI Blog2012 (6) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income-tax Department and the authorities constituted under the Madhya Pradesh Trade Tax Act on the basis of power of attorney or as legal representative and submitted documents such as audit reports and certificates required to be issued by the Chartered Accountants by preparing forged seals. He is also said to have impersonated himself as Chartered Accountant and prepared audit reports for monetary conside-ration. 4. Shri Brij Kishor Saxena, who was authorised by the appellant-Institute to do so, submitted complaint dated 18-3-2001 to the Station House Officer, Police Station, Betul with following allegations : "(1) That the said Shri Vimal Kumar Surana is not registered with the Institute of Chartered Accountants of India as Chartered Accountants, but he being not a Chartered Accountant impersonated in the public as such, and performed such functions which are being performed by a Chartered Accountant. Whereas without being registered as Chartered Accountant, he is not legally authorized to perform the said functions before the Income-tax Department, under the provisions of Income-tax Act, 1961, he represented himself as legal representative. Similarly under section 31 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 and 26 of the Act cannot be taken because no complaint had been filed by or under the order of the Council before the Magistrate. 6. The appellant questioned the correctness of orders dated 29-10-2003 and 8-12-2003 passed by 1st Additional Sessions Judge, Betul and the trial court respectively by filing two separate revisions. The learned Single Judge of the High Court dismissed both the revisions. He held that even though prima facie case was made out against the respondent under sections 24, 24A and 26 of the Act, the Magistrate could not have taken cognizance because no complaint was filed under section 28 and the report submitted by the police could not be made basis for punishing him on the allegation of contravention of any of those provisions. The learned Single Judge also referred to sections 2(d), 4, 5 and section 195(1)(b)( ii) Cr.P.C. and held that in the absence of a complaint filed by the concerned Court, the Magistrate was not competent to frame charges against the respondent. The learned Single Judge also held that in view of the special mechanism contained in the Act for prosecution of a person violating sections 24, 24A and 26 of the Act, he cannot be prosecuted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct from the offences defined under sections 419, 420, 465, 467, 468, 472 and 473 IPC and even if the complaint submitted by Brij Kishor Saxena cannot be treated as a complaint filed under section 28 of the Act, his prosecution for offences defined under the IPC cannot be treated as barred. 10. The Chartered Accountants Act was enacted by Parliament to make provision for regulation of the profession of Chartered Accountants. Chapter I of the Act contains definitions of various terms. Chapter II contains provisions relating to incorporation of the Institute, entry of names in the Register, categorisation of the members of the Institute and certificate of practice. Section 7 which also finds place in this Chapter declares that every member of the Institute in practice shall, and any other member may, use the designation of a chartered accountant and no member using such designation shall use any other description, whether in addition thereto or in substitution therefor. Section 8 enumerates the disabilities which disentitles a person to have his name entered in the Register. Section 9(1) which finds place in Chapter III postulates that there shall be a Council of the Institute for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; or (ii )being a member of the Institute, but not having a certificate of practice, represents that he is in practice or practises as a chartered accountant, shall be punishable on first conviction with fine which may extend to one thousand rupees, and on any subsequent conviction with imprisonment which may extend to six months or with fine which may extend to five thousand rupees, or with both. 24A. Penalty for using name of the Council, awarding degree of chartered accountancy, etc.-(1) Save as otherwise provided in this Act, no person shall- (i )use a name or the common seal which is identical with the name or the common seal of the Institute or so nearly resembles it as to deceive or as is likely to deceive the public; (ii )award any degree, diploma or certificate or bestow any designation which indicates or purports to indicate the position or attainment of any qualification or competence similar to that of a member of the Institute; or (iii)seek to regulate in any manner whatsoever the profession of chartered accountants. (2) Any person contravening the provisions of sub-section (1) shall, without prejudice to any other proceedings which may be taken against him, be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into tried, and otherwise dealt with according to the provision hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 5. Saving.-Nothing contained in this Code shall in the absence of a specific provision to the contrary, affect any special or local law any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-(1) No Court shall take cognizance- (a) (i)of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or (ii)of any abetment of, attempt to commit, such offence, or (iii)of any criminal conspiracy to commit, such offence, exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, such Court shall be deemed to be subordinate to the civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed." 12. An analysis of section 24 shows that if a person who is not a member of the Institute represents himself as a member of the Institute or uses the designation of chartered accountant then he is liable to be punished on first conviction with fine which may extend to Rs. 1,000. On any subsequent conviction, he can be punished with imprisonment up to 6 months or fine which may extend to Rs. 5,000 or with both. Similar punishment can be imposed on a member of the Institute who does not have a certificate of practice but represents that he is in practice or practises as a chartered accountant. Sub-section (2) of sections 24A, 25 and 26 provide for imposition of different kinds of punishment for violation of the provisions contained in sub-section (1) of those sections. The punishment prescribed under section 24A can be imposed if a person uses a name or the common seal which is identical with the name or the common seal of the Institute or is almost similar to such seal and the us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 24A, 25 or 26 and such act also amounts criminal misconduct which is defined as an offence under the IPC, then a complaint can be filed by or under the order of the Council or of the Central Government under section 28, which may ultimately result in imposition of the punishment prescribed under section 24 or sub-section (2) of section 24A, 25 or 26 and such member or non-member or company can also be prosecuted for any identified offence under the IPC. The object underlying the prohibition contained in section 28 is to protect the persons engaged in profession of chartered accountants against false and untenable complaints from dissatisfied litigants and others. However, there is nothing in the language of the provisions contained in Chapter VII from which it can be inferred that Parliament wanted to confer immunity upon the members and non-members from prosecution and punishment if the action of such member or non-member amounts to an offence under the IPC or any other law. 14. The issue deserves to be considered from another angle. If a person cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a manner which will deprive the victim of the offences defined in sections 416, 463, 464, 468 and 471 of his right to prosecute the wrongdoer by filing the first information report or complaint under the relevant provisions of Cr.P.C. 15. We may add that the respondent could have been simultaneously prosecuted for contravention of sections 24, 24A and 26 of the Act and for the offences defined under the IPC but in view of the bar contained in Article 20(2) of the Constitution, read with section 26 of the General Clauses Act, 1897 and section 300 Cr.P.C., he could not have been punished twice for the same offence. In Maqbool Hussain's case (supra), the Court considered the question whether the appellant who had brought gold from Jeddah in contravention of Notification dated 25-8-1948 could have been prosecuted under section 8 of the Foreign Exchange Regulation Act, 1947 after the gold had been confiscated by the authorities of the Customs Department under section 167(8) of the Sea Customs Act, 1878. The appellant challenged his prosecution by contending that this amounted to infringement of his fundamental right under Article 20(2) of the Constitution. The Bombay High Court negativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence,' and also in section 403(1) of the Criminal Procedure Code, 1898,- 'A person who has been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237'." The Court then referred to the provisions of the Sea Customs Act, 1878 and held : "We are of the opinion that the Sea Customs authorities are not a judicial Tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a Court or judicial Tribunal necessary for the purpose of supporting a plea of double jeopardy. It, therefore, follows that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ingredients of the two offences and see whether their identity is made out. . . . . . . Though section 26 in its opening words refers to 'the act or omission constituting an offence under two or more enactments', the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to 'shall not be liable to be punished twice for the same offence'. If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked." 18. In V.K. Agarwal v. Vasantraj Bhagwanji Bhatia [1988] 3 SCC 467, this Court considered the question whether the acquittal of an accused charged with having committed an offence punishable under section 111, read with section 135, of the Customs Act, 1962 create a legal bar to the subsequent prosecution of the said accused under section 85 of the Gold (Control) Act, 1968. The Gujarat High Court answered the question in affirmative. This Court reversed the order of the High Court and observed: "It is, therefore, evident that the ingredients required to be establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lternative charge one, under the Customs Act, and the other, under the Gold (Control) Act. If the ingredients of both the offences are satisfied the same act of possession of the gold would constitute an offence both under the Customs Act as also under the Gold (Control) Act. Such being the position it cannot be said that they could have been tried on the same facts for an alternative charge in the context of section 236 Cr.P.C. at the time of the former proceedings. The submission urged in the context of section 403(1) cannot, therefore, succeed for it cannot be said that the persons who are sought to be tried in the subsequent proceedings could have been tried on the same facts at the former trial under section 236." 19. In State of Bihar v. Murad Ali Khan [1988] 4 SCC 655, the question considered by the Court was whether the complaint lodged by the competent officer alleging commission of offence under section 9(1), read with section 51 for killing elephants and removing its husk was maintainable notwithstanding the pendency of police investigation for an offence under sections 447, 429 and 479, read with sections 54 and 39, of the Act. After adverting to the relevant provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly guaranteed under Article 20(2) of the Constitution. Section 26 of the General Clauses Act, 1897 provides: '26. Provision as to offences punishable under two or more enactments.-Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.' Broadly speaking, a protection against a second or multiple punishment for the same offence, technical complexities aside, includes a protection against re-prosecution after acquittal, a protection against re-prosecution after conviction and a protection against double or multiple punishment for the same offence. These protections have since received constitutional guarantee under Article 20(2). But difficulties arise in the application of the principle in the context of what is meant by 'same offence'. The principle in American law is stated thus : 'The proliferation of technically different offences encompassed in a single instance of crime behaviour has increased the importance of defining the scope of the offence that controls for purposes of the doub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e view that the respondent could have been prosecuted either under section 5 or section 6(3) of the Rajasthan Sati (Prevention) Act, 1987 and not under both the sections. The High Court had ruled in favour of the respondent. This Court reversed the judgment of the High Court, referred to Article 20(2) of the Constitution, the judgments in Maqbool Hussain's case (supra), S.L. Apte's case (supra) and observed : "The rule against double jeopardy is stated in the maxim nemo debet bis vexari pro una et eadem causa. It is a significant basic rule of criminal law that no man shall be put in jeopardy twice for one and the same offence. The rule provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in section 26 of the General Clauses Act, 1897, section 300 of the Code of Criminal Procedure, 1973 and section 71 of the Indian Penal Code. Section 26 of the General Clauses Act provides : '26. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of any offence under MCOCA unless sanction has been previously given by the police officer mentioned hereinabove. In such a situation, even as far as a private complaint is concerned, sanction has to be obtained from the police officer not below the rank of Additional Director General of Police, before the Special Judge can take cognizance of such complaint. We are also inclined to hold that in view of the provisions of section 25 of MCOCA, the provisions of the said Act would have an overriding effect over the provisions of the Criminal Procedure Code and the learned Special Judge would not, therefore, be entitled to invoke the provisions of section 156(3) Cr. P.C. for ordering a special inquiry on a private complaint and taking cognizance thereupon, without traversing the route indicated in section 23 of MCOCA. In other words, even on a private complaint about the commission of an offence of organised crime under MCOCA cognizance cannot be taken by the Special Judge without due compliance with sub-section (1) of section 23, which starts with a non obstante clause. As indicated hereinabove, the provisions of section 23 are the safeguards provided against the invocation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority. Section 22 of TOHO prohibits taking of cognizance except on a complaint made by an appropriate authority or the person who had made a complaint earlier to it as laid down therein. The respondent, although, has all the powers of an investigating agency, it expressly has been statutorily prohibited from filing a police report. It could file a complaint petition only as an appropriate authority so as to comply with the requirements contained in section 22 of TOHO. If by reason of the provisions of TOHO, filing of a police report by necessary implication is necessarily forbidden, the question of its submitting a report in terms of sub-section (2) of section 173 of the Code did not and could not arise. In other words, if no police report could be filed, sub-section (2) of section 167 of the Code was not attracted. It is a well-settled principle of law that if a special statute lays down procedures, the ones laid down under the general statutes shall not be followed. In a situation of this nature, the respondent could carry out investigations in exercise of its authorisation under section 13(3)(iv) of TOHO. While doing so, it could exercise such powers which are otherwise ves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution Bench in Iqbal Singh Marwah v. Meenakshi Marwah [2005] 4 SCC 370. The Constitution Bench referred to other provisions of Cr.P.C. and considered earlier judgments and observed : "The scheme of the statutory provision may now be examined. Broadly, section 195 Cr.P.C. deals with three distinct categories of offences which have been described in clauses (a), (b)(i ) and (b)( ii) and they relate to (1) contempt of lawful authority of public servants, (2) offences against public justice, and (3) offences relating to documents given in evidence. Clause (a) deals with offences punishable under sections 172 to 188 IPC which occur in Chapter X IPC and the heading of the Chapter is - "Of Contempts of the Lawful Authority of Public Servants". These are offences which directly affect the functioning of or discharge of lawful duties of a public servant. Clause (b)( i) refers to offences in Chapter XI IPC which is headed as - "Of False Evidence and Offences Against Public Justice". The offences mentioned in this clause clearly relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a court of justice or before a public servan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Statute Law, 7th Edn., pp. 207, 209.) The fact that the procedure for filing a complaint by Court has been provided in Chapter XXVI dealing with offences affecting administration of justice, is a clear pointer to the legislative intent that the offence committed should be of such type which directly affects the administration of justice, viz., which is committed after the document is produced or given in evidence in Court. Any offence committed with respect to a document at a time prior to its production or giving in evidence in Court cannot, strictly speaking, be said to be an offence affecting the administration of justice." The Court then referred to section 195 of the Code of Criminal Procedure, 1898, the Full Bench judgment of the Allahabad High Court in Emperor v. Kushal Pal Singh AIR 1931 All. 443 and observed : "The Court clearly rejected any construction being placed on the provision by which a document forged before the commencement of the proceeding in which it may happen to be used in evidence later on, to come within the purview of section 195, as that would unreasonably restrict the right to initiate prosecution possessed by a person and recognised by section 190 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n act of forgery the document is subsequently produced in Court, is capable of great misuse. As pointed out in Sachida Nand Singh after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any Civil, Criminal or Revenue Court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would, thus, be protected from prosecution, either at the instance of a private party or the police until the Court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large." The attention of the High Court does not appear to have been invited to the aforesaid judgment of the Constitution Bench and this is the reason that the High Court declared that the complaint filed by Brij Kishor Saxena was not maintainable because the same was not filed in accordance with section 195(1)(b)( ii) Cr.P.C. 26. Although, Shri Gupta argued that the allegations levelled against the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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